February 1998
An editorial from our webmaster:
How does the internet come to bear on copyright issues? The internet makes it easy to distribute and copy information around the world. The engine that makes the internet work is the file transfer protocol (FTP) -- it works by making copies. On the internet nothing could be easier than making a copy. Digital copies of digital information make perfect copies; there is no data loss in internet copies of things. The only limitation is the amount of information that the Information Super Highway can carry. That does not limit how much but rather how fast one can make the copy. If you are willing to wait a week I can send you a movie, and no one will notice. Text information is almost trivial, even a large book, say, the bible can be downloaded into a home computer in several minutes. Records and video take much more time at current communications speeds.
Today, if I made an educated guess about the percentage of bits transmitted on the internet devoted to various kinds of media, probably porno video and pictures would be 80 to 90% of the bit traffic. This is largely true because the major industry leading the way in net traffic is the smut industry. The internet is currently a free zone, difficult to control, and often it lands in the nether lands (that's a small n and a pun) between legislative authorities.
The internet provides an ideal location for smut to gestate outside the grip of the law. This is not a value judgment, just a fact. Another fact is that no matter what law any legislature enacts, there is no way to control content of data on the internet. There is always some country that will allow posting of this material, and that means that anyone can pick it up. If the US bans smut (with any definition, then the money it generates will just become part of the US trade imbalance, because the origin of the traffic will move elsewhere, even if the people stay in the US).
Today, as far as I can tell, the smut industry is unconcerned with copyright. Internet news postings of smut advertising is usually accompanied with sample photos. Rarely is copyright indicated on any of them. Often when a striking image is used for one smut site, it will recur in the advertising of another site. Some attempt often made to make pictures difficult to copy by placing text over sensitive parts but usually a few minutes with Adobe Photoshop will fix the damage and provide a reconstructed photograph -- good as new. These cleaned up version without the ads are often redistributed to the same groups the advertiser used. Often scanned in photographs from other copyrighted material is distributed on the internet news groups; this is usually smut, but it may be other things as well.
Anyone with a scanner at home can scan in a picture (or text) from a book or magazine and post it to a news group. A copyright law violation; it sure is. Go after these people for violations of the law... are you kidding? There is no chance of a copyright holder getting back his own attorney's fees much less damages, even if the violation could be proven, which would be pretty difficult. In this sense copyright is already dead.
There is another way copyright is dead on the internet. If I want to show someone who visits my site's copyrighted material, let's say, a picture from a museum that has made the art available on the net. There is no legal reason that I can't dynamically download it from another site and republish it as coming from my own site, I might even reformat it in the process. This is not covered by copyright at all, as far as anyone can tell, I am a browser downloading a picture for my use... which in fact that is exactly what is going on, except then I pass it on to the person visiting my site. This has the advantage that I don't have to send my visitor elsewhere to view the museum's picture, I can just provide it to him. The viewer doesn't even know that it came from somewhere else. That keeps the visitor local and my advertising revenue and hit rate stays high, but the storage and communications cost are borne by the museum site. This is because of the nature of the internet, which copies things as a part of it's normal operation. One can not prevent the copying, there would be no internet.
Note that copyright law makes the copying the illegal act. If the copy is done in a jurisdiction where the copying is legal then no law has been broken. India is such a country, so is Macau. If enforcement of criminal copyright law becomes comon in this country, then many will just choose to host their web site in India or Macau. You can pay for the site with a credit card, and you never have to leave your seat. You can move a copy of your site with a flick of the mouse, and then all the copying that was illegal is now legal. India would be happy to see the foreign money this will generate; I doubt they are going to rush to change the law. They certainly have not bowed to US pressures to change the law in the past, why now, when it will really start generating income.
The smut industry is driving the internet rapidly toward online, real-time video. It seems there is a small nation of voters who are willing to pay to watch other people do what they tell them to do. As voters pay to watch smut they pay to increase communication speeds and to develop new technologies that will make the net a more effective communications channel. This in turn will make distribution of video, recording and phone conversations so easy that it will challenge the movie, recording, and telecommunications industries to rethink their business or go under.
But how long are communication speed limitations going to last. The answer is a long time. The demand for communication bandwidth will grow faster than anyone can provide it because the internet protocol was designed to operate without accounting. To impose packet accounting would be so inefficient as to more than double the needed bandwidth... so that won't happen. Without accounting there can only be local time, usage, or connection charges. Charging more for long distance access is impossible, because no one knows where a packet is going to or coming from. Certainly the user does not know and without his knowing it would be unjust to charge him a different rate.
But internet bandwidth will increase rapidly, I predict that within five years high-resolution video will be available on the net, that kind of bandwidth means that books, records, and movies can be sent from one person to another without degradation. When that happens, traffic from individuals will probably begin to dominate the internet gradually reducing smut content to under ten percent. That's the good news.
The bad news is that the new content taking over from smut will be violations of copyright law: illegal copies of movies, music, and books being distributed by individuals. This will make copyright law completely meaningless.
Policing these violations of copyright will be impossible. Encryption exists now and is necessary for commerce. With encryption no one will be able to identify illegal content on the fly. Of course pirate publishers from a civilized country (one that respects copyright) can still be caught, but remember a pirate can be anywhere in the world, and they will be located in some place where copying is legal.
With the demise of copyright many recording companies and some publishing companies will go under. It will put movie producers under much strain. I predict a big increase in the cost of first run movies at the movie theater, because movie producers are going to have to make their money on the first run of a movie.
Newspapers and magazines will probably still thrive on the internet, albeit in an altered form, because the rapid turnaround of the information that news publishers provide does not allow for individuals to copy things fast enough for the demand. On the other hand increasing bandwidth on the internet will mean that few people will avail themselves of long distance telephone calls in favor of a direct internet connection instead. Several people I know already take full advantage of this service, even though the quality now is just marginal.
All is not doom and gloom. With the demise of big publishers and recording
companies, the little guy can have a chance. Creative individuals can record,
advertise, and publish with a small amount of money. Consumers will be able
to download their music, videos, and books and pay them directly on the
web. Of course, each consumer can send the stuff off to their friends for
free as well. But still, the individual creative artist should do pretty
well even without copyright.
Finally we should talk about those that have been left out of copyright law: the software producers and developers. Not that they were left out exactly, they are included of course. But software has always been easy to duplicate; it's part of the nature of the beast. So copyright has never been very effective.
The software industry has taken many steps to make software more difficult to copy. All the tricks have been tried. Increase it's size so it won't fit on a reasonable number of floppy disks. This is the reason for the popularity of CD-ROM disks. The ROM stands significantly for Read Only Memory, except now-a-days one can buy writeable CDs so that nomenclature becomes almost meaningless.
One trick that works, but has never proved popular, is to provide with the software a hardware "dingle" that consumer sticks on a serial or parallel port. Without the dingle attached the software doesn't work. This freely allows copying of the software, but unless you can duplicate the hardware dingle the software is useless. The reason this method works is it doesn't depend on copyright law.
One reason dingles have never proved popular is that many people buy products for a friend, but make a copy for themselves first, or vice versa. This type of consumer is reluctant to buy something that does not provide them that flexibility. So they will buy an unprotected competitor's product instead. If the software producer were clever they would give two dingles with every product, so that if one went bad the consumer wouldn't be inconvenienced. It would still be illegal to give away a copy, of course.
Computers copy things all the time. The execution of software requires making a temporary copy of it in main memory. Backup software makes copies on other media. Networks are becoming common, even in individual homes. Networking means that software is often shared between many machines. The executable copy may reside one place but copies are made on whatever machine needs to use the software. All of this really violates copyright unless there is a long contract which defines what can and can't be done by the individual. But then it is not copyright law that is really operating, instead it is contract law that is working. In reality, the computer mode of operation is designed to violate copyright in daily operation.
Then there is the common copyright restrictions often found with freeware. The GNU general software license is a common if somewhat fascist example. It prohibits resale, insists on inclusion of the source code with any distributions, and has several other conditions. These kinds of statements are moral imperatives but seem silly with respect to the law. First of all it seems there was no valid contract, since nothing was exchanged. Second all those conditions do not fit well under copyright law. Enforcement? A lawsuit? For how much money? The original author specifically gave away the programs, so he felt they were not worth anything, so he had no economic interest in the product. Well yes, copyright law may have been violated by a removal of the copyright, but changes, redistribution with the source, reworking the code, or even a substitution of the authorship to reflect the reworking, is not really a violation of anything.
In copyright law the conditions of free use are spelled out. They are not something that a copyright holder can really grant without a specific contract. How about this restriction: "You may use this for free if you always pick up your mail by 10 am otherwise you must pay me $10 per use.". If a copyright holder is giving away the product for free, he can hardly expect that he can control the behavior of the person he gave it to. I suppose the copyright holder can expect the material will not be copied as is and resold, this is certainly the same as a copyright on a free flyer given away at a supermarket or a free press newspaper.
Any revision of copyright law should deal with the issue of free distribution of material: how modifications are to be treated, and what rights the original creators are entitled to. This will be a sticky and difficult problem.
Copyright protects the expression of an idea, so, one has always been able to take copyrighted material and rework it into something new (that is reexpress it). The newly created work is now a new composition that can be copyrighted itself. Musicians and artists have always "quoted" one another, the examples are endless. The question is, how much change is necessary to make something really a new expression. The courts have never made this clear. Different media have been treated differently (and sometimes inconsistently), and software has never been adequately tested in this way. Common sense tell you that if you develop the software from it's specification without looking at the code it is clearly a new expression. But how specific can the specification be? Can it look like source code? It seems clear that there is no good dividing line for software. If I use a subroutine from a copyrighted program, is it copyrighted? If I change the names of the identifiers in the program is that adequate? If I rework the order of the computation? There really seems to be no good answer.
The one place that provides some promise for identifying copying, is if a program contains one or more demonstrable errors that would not have occurred in the normal writing of the program and the copy contains the same errors then it was copied not rewritten. And maybe this should be the basis for a standard of expression. It however is an odd thing to cast into law. This mandates that anyone who wants protection knowingly places errors in the thing that is protected. Somehow it feels wrong to me. But I see little other way out of this dilemma.
Computer programs and their needs are sufficiently different that a set of rules for using programs that fall under intellectual property rights need to be defined. If a set of rules for what is a protectable expression in a computer program can be worked out, maybe it should be dignified with a new symbol circle S corresponding to the rules worked out for performing artists with circle P. But let me emphasize that none of this will work at all unless a general method for handling copyright is found for the internet era.
Revision of copyright law is a non-trivial effort. It involves deep thinking about what needs protection and how to offer those protections without creating a totalitarian state. If my sources are right a step towards that totalitarian state was enacted into law, December 1997, by changing the US copyright law so that copyright infringers could be punished even if the offender made no money from the copies. This will not work, it can only force websites out of the country; and thus they drop out of our economy, while stimulating the economy of another country.
Because of the internet, copyright law involves not only the US but every country in the world with treaties and trade agreements. Congress must act quickly; copyright law is long past due for substantive, meaningful revision, and it must be a rational, humanistic revision.
BUZ
Webmaster, ServeNet
© 1997 Robert Uzgalis. All Rights Reserved.